Citation Nr: 21073799
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 07-32 539
DATE: December 10, 2021

ORDER

Entitlement to service connection for non-Hodgkin's lymphoma is dismissed.

Entitlement to a rating in excess of 10 percent for asbestosis, prior ot July 10, 2007, is dismissed.

FINDINGS OF FACT

1. The Veteran died in November 2021.

2. At the time of his death, the Veteran had claims pending.

CONCLUSION OF LAW

Due to the death of the Appellant, the Board has no jurisdiction to adjudicate the merits of the claims at this time. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 20.1106, 20.1302.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active service from June to September 1952 and from September 1956 to March 1961.  The Veteran died in November 2021.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

1. Entitlement to service connection for non-Hodgkin's lymphoma

2. Entitlement to a rating in excess of 10 percent for asbestosis, prior ot July 10, 2007

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, Veterans' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1302.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106.

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. Such request must be filed not later than one year after the date of the appellant's death. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (b). A person eligible for substitution includes "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . . . ." 38 U.S.C. § 5121A; see 38 C.F.R. § 3.1010 (a). An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated (listed on the first page of this decision). 38 C.F.R. § 3.1010 (b).

The Board notes that the Veteran's spouse filed a claim for entitlement to Dependency Indemnity and Compensation benefits in November 2021.  To date, the RO has not issued a determination on the substitution request. Therefore, the Board does not have jurisdiction.

 

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Baskerville

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.